00-036

       Petitioner appeals from a hearing officer's decision which upheld the recommendation of respondent's Committee on Special Education (CSE) that her daughter should not be classified as a child with a disability and which denied her request for compensatory education. Respondent Board of Education cross-appeals from the hearing officer's interim order which directed it to secure an independent neuropsychological evaluation of the student at its expense. The appeal must be sustained in part. The cross-appeal must be dismissed.

        Preliminarily, I will address the procedural issues raised in this appeal. Respondent argues that the notice of intention to seek review and the petition were not properly served. State regulation requires that a notice of intention to seek review and a petition be served upon the board of education, the district clerk, or the chief school officer (8 NYCRR 279.2[b]). The record shows that on March 27, 2000, petitioner served the notice of intention to seek review upon respondent's counsel. The affidavit of personal service for the petition appears to indicate that on May 31, 2000, petitioner served the petition upon respondent's counsel. The petition was then filed with the Office of Counsel of the State Education Department on June 5, 2000. There is no evidence in the record that petitioner, who is representing herself in this appeal, was ever advised that respondent's counsel could not accept service of the notice of intention to seek review and the petition on behalf of respondent. I find that it would not be equitable nor consistent with the purpose of federal and state law governing this appeal to require petitioner to serve her papers again. Respondent was on notice of the commencement of this appeal, and it has not offered evidence that it has been prejudiced by the allegedly improper service. Under the circumstances, I will not dismiss the appeal.

        Respondent also asserts that petitioner's appeal should be dismissed as untimely because it was filed more than 40 days after petitioner had reportedly received the hearing officer's decision (8 NYCRR 279.2[b]). The hearing officer rendered his decision on March 16, 2000. As noted above, on March 27, 2000, petitioner served her notice of intention to seek review. However, she did not serve the petition until May 31, 2000. Given the fact that petitioner promptly served a notice of intention to seek review and the fact that respondent does not appear to be prejudiced by the delay in the filing of the petition, I will not dismiss the appeal as untimely.

        Petitioner has attached several documents to her petition, some of which were not included in the record before the hearing officer. The evidence which was not before the hearing officer consists of a letter dated April 5, 2000, a letter dated April 6, 2000, a report card for the period ending April 6, 2000, and a notice of intention to seek review dated April 17, 2000 directed to the Superintendent of the Arlington Central School District. I note that the notice of intention to seek review was not included in the papers filed with Office of Counsel of the State Education Department initiating this appeal. Respondent argues that consideration of such evidence in this appeal violates federal and state law and deprives it of due process of law. Documentary evidence not presented at a hearing may be considered in an appeal from a hearing officer's decision if such evidence was unavailable at the time, or the record would be incomplete without the evidence (Application of a Child with a Disability, Appeal No. 98-55; Application of a Child with a Disability, Appeal No. 95-41; Application of a Child with a Disability, Appeal No. 93-20). The letters dated April 2000 and the report card were not available at the time of the hearing and I will accept them so that I have a more complete record. To further support my decision to accept this appeal, I will also accept the notice of intention to seek review directed to respondent's superintendent. It provides evidence that it was served in a timely manner upon an individual authorized to accept service and further demonstrates that respondent was promptly notified of petitioner's intention to file the appeal.

        Petitioner has also submitted additional evidence by cover letter dated March 26, 2001. The additional evidence, which was not available at the time of the hearing, consists of a medical diagnosis dated February 27, 2001 and the student's report cards for the periods ending January 22 and March 2, 2001. I will also accept these documents so that I have a more complete record.

        The student was nearly 15 years old and in the ninth grade at Arlington High School when the hearing began in April 1999. She began attending respondent's schools for kindergarten in 1988 (Exhibit P-5). When she was in the first grade during the 1989-90 school year, the student reportedly received private tutoring (Exhibit P-6). In April 1990, her teacher recommended that she be retained due to difficulty with reading and math skills (Exhibits P-6 and P-7). The student repeated the first grade during the 1990-91 school year (Exhibit P-9). She reportedly had a very successful year and received grades in the satisfactory range (Exhibit P-27). She continued advancing through the grades and completed fifth grade in June 1995. A teacher report during the fifth grade indicated the student had difficulty with verbal and written directions, and that she was often confused by tasks requiring multi-thought processes or steps (Exhibit P-13).

        The student attended Titusville Intermediate School for sixth grade during the 1995-96 school year where she experienced some difficulty with grammar concepts (Exhibit SD-10). For seventh grade during the 1996-97 school year, she was placed in a level 3 English class, where the material was presented at a slower pace and additional support was provided (Transcript p. 290, Exhibit SD-10). The student's grades reportedly declined during the seventh grade (Exhibit SD-10).

        In January 1998, petitioner requested that the school district conduct educational testing of her daughter (Exhibit P-18). The student was in the eighth grade at the time. In a psychological evaluation report dated March 8, 1998, the student achieved a verbal IQ score of 95, a performance IQ score of 98, and a full scale IQ score of 96 on the Weschler Intelligence Scale for Children - III (WISC-III), placing her in the average range of intellectual functioning (Exhibits SD-10 and P-27). On achievement testing, weaknesses were noted in the areas of reading, basic mathematical concepts and applications, and visual motor skills. The school psychologist noted that the student lacked confidence in her academic skills, and as a result, was unable to express herself and ask for assistance in front of her peers. She recommended that the student be placed in a resource room or receive remediation to address her deficit skill areas. She also recommended that a speech/language evaluation be conducted.

        A speech/language evaluation was conducted on March 13, 1998 (Exhibits SD-12 and P-30). The speech/language pathologist reported that the student achieved scores in the average range. She noted that the results were commensurate with the student's intellectual functioning and did not recommend speech/language therapy.

        The CSE met on March 18, 1998 and determined that the student was not eligible for special education services (Exhibits SD-13, P-34 and P-37). The minutes from that meeting indicate that the student was functioning in the average range of intelligence. Some weaknesses were noted in reading, which the CSE determined could be addressed in a remedial reading program. By letter dated May 18, 1998, an advocate representing petitioner advised the CSE chairperson of petitioner's disagreement with the CSE's recommendation not to classify her daughter (Exhibit P-35). Additionally, the advocate requested that an independent psychoeducational and speech/language evaluation of the student be conducted. For her eighth grade year, the student achieved final grades of 77 in English, 65 in social studies, 69 in math, 70 in earth science, 51 in Spanish, 56 in health, 73 in technology, 89 in computer, and 91 in physical education (Exhibits SD-15, P-39). The student's report card included teachers' comments indicating that the student was inadequately prepared for tests and quizzes, and that she tested poorly.

        The student attended Arlington High School for ninth grade during the 1998-99 school year. In November 1998, petitioner advised the CSE chairperson of her dissatisfaction with the previous testing of her daughter and requested that her daughter be tested by an independent speech/language pathologist and neuropsychologist (Exhibit P-41). On November 20, 1998, petitioner requested that additional testing of her daughter be conducted (Exhibits SD-17 and P-44). Specifically, she requested an occupational therapy evaluation with emphasis on motor performances relating to written language. She asked that the Test of Written Language (TOWL) or other comparable standardized assessment in penmanship be administered. She also asked for a central auditory processing evaluation (CAPE). Petitioner signed a written consent for referral and evaluation on November 30, 1998 (Exhibit P-45).

        In a psychological update dated December 4, 1998, the school psychologist reported that a full psychological and speech/language evaluation had been completed in March 1998, the results of which indicated that the student was of average intellectual potential with a relative weakness in reading (Exhibits SD-19 and P-47). The school psychologist noted that the student was receiving remedial reading and performing successfully in all academic areas. On the Bender Visual Motor Gestalt Test the student demonstrated good perceptual skills, however, some perceptual-motor weaknesses were noted. The psychologist also noted that the student exhibited an awkward pencil grip, and that she erased in an effort to improve figures she perceived as being slightly irregular. She recommended an occupational therapy consultation.

        The CSE convened on December 16, 1998 (Exhibits SD-21 and P-62). The minutes from that meeting indicate that the CSE discussed the findings from the review it had conducted in March 1998 when the student was in the eighth grade. The minutes further indicate that the CSE reviewed the student's current report card and the December 1998 psychological update. The CSE accepted the psychologist's recommendation for an occupational therapy evaluation and indicated that it would reconvene after the occupational therapy evaluation had been conducted to review the results. As the evaluation process had not been completed, the CSE did not make a recommendation regarding classification. By letter dated December 16, 1998, petitioner requested an impartial hearing seeking that her daughter be classified as a child with a disability (Exhibits SD-22 and P-50). She also requested one year of compensatory education.

        In December 1998 and January 1999, the student's teachers prepared progress reports (Exhibit SD-24). The reports showed that the student was receiving grades in the average range for science. Her teacher indicated that test taking was her weakest area. In English, the student received an 80 average for the first marking period and for the second marking period her average was 75. Her English teacher indicated that she needed more practice in writing and reading. Her global history teacher indicated that the student's performance had been mixed. While the student was conscientious about completing her assignments, including homework, she struggled on tests and quizzes, scoring in the borderline pass/fail range. She also had difficulty clearly expressing ideas verbally. Her global history teacher noted that the student was generally cooperative, but at times did get distracted and lose focus. The student's global history lab teacher indicated that the student's reading and writing skills were average and that she needed to spend more time understanding the subject area. The foundations of reading and writing teacher described the student as a "little talkative" and suggested that she needed to focus more carefully on her work. For the second quarter of the ninth grade, the student received grades of 80 in English, 73 in global studies, 87 in math, 76 in science, 76 in studio crafts and satisfactory in physical education (Exhibit SD-63).

        On February 1, 1999 a speech/language evaluation was conducted during which the TOWL-3 was administered (Exhibits SD-28 and P-67). The speech/language pathologist reported that the student's overall writing score fell within the below average range. However, she noted that there were several discrepancies among the student's subtest scores. The student's ability to write in a logical, sequential and interesting manner fell within the high average range and her ability to use good vocabulary, complex sentences and correct grammatical structures was above average. The student's weakest area of writing was in spelling and application of the general rules of punctuation. The speech/language pathologist noted that while the student's use of ending sentence punctuation and capitalization was good, her poor performance was the result of punctuation omisions rather than improper usage. She concluded that the student's weaknesses could be addressed in the general classroom setting and should not significantly impede her academic learning.

        By letter dated February 4, 1999, the CSE chairperson attempted to clarify the parent's intentions with respect to her December 16, 1998 request for an impartial hearing (P-65). Specifically, she inquired whether the CSE could continue with the process of determining her daughter's eligibility for special education services or whether the parent would prefer to pursue her request for an impartial hearing. I note that there is no indication in the record of any response from petitioner. Nor is there any evidence that she withdrew her request for an impartial hearing. However, the record does include an agenda for the CSE meeting prepared by petitioner which includes the issues of eligibility and additional evaluations, but no reference to an impartial hearing (Exhibit P-70).

        An occupational therapy evaluation was conducted on February 8, 1999 (Exhibits SD-32 and P-68). The occupational therapist noted that despite frequent interruptions during the evaluation session, the student was able to refocus easily. On the Evaluation Tool of Children's Handwriting, the student achieved a 93.9 percent in word legibility, an 88 percent in letter legibility, and a 92 percent in numeral legibility. The occupational therapist noted that the student's pencil grasp was awkward. On the Beery Test of Visual Motor Integration, the evaluator noted that while the student scored within the norm for her age, the motor component was more difficult for her than was the perceptual component. The occupational therapist reported that the student functioned independently in her educational environment and maintained average grades. She did not recommend occupational therapy services for the child.

        On February 9, 1999, the student was assessed using the Weschler Individual Achievement Test (WIAT) (Exhibit SD-33). She performed in the average range in overall reading, math and language skills, and in the low average range in overall writing skills. The school psychologist concluded that the student's scores on the WIAT were commensurate with her overall level of cognitive ability as measured by the WISC-III in 1998 (See Exhibits SD-10 and P-27).

        The CSE met on February 17, 1999 to review the results of the WIAT, the TOWL-3, and the occupational evaluation (Exhibits SD-35, P-72 and P-73). The CSE found that there was no significant difference between the student's expected level of achievement and her level of intellectual functioning. Additionally, the occupational therapy evaluation and the TOWL-3 revealed that she was functioning within normal limits. The CSE determined that the student was ineligible for classification as a child with a disability. The minutes from that meeting note that the parent requested an independent evaluation which was denied because the CSE believed that the district's evaluations were adequate and appropriate.

        By letter dated February 23, 1999, the Board of Education's attorney advised petitioner that the Board of Education would initiate an impartial hearing pursuant to 34 C.F.R. § 300.503[b] and 8 NYCRR 200.5[a][1][vi][a] to demonstrate that its evaluation was appropriate (Exhibit IHO-2). In a letter dated February 25, 1999 (Exhibit IHO-3), petitioner requested an impartial hearing claiming that her daughter had been denied special education services for a prolonged period of time, and alleging violations of the Individuals with Disabilities Education Act (20 U.S.C. § 1400 et seq., hereinafter referred to as IDEA) and Section 504 of the Rehabilitation Act of 1972 (Section 504). She further alleged that respondent treated her unfairly because of her association with a special education organization which was in a dispute with respondent. Additionally, she asserted that the Board of Education misused its federal special education funds when it sought an impartial hearing instead of securing independent evaluations and providing special education services to her daughter.

        The impartial hearing in this matter began on April 19, 1999. It continued on various dates in May and June, 1999. At the hearing on June 11, 1999, the parent requested that the hearing officer determine the need for an independent evaluation. In an interim order dated June 14, 1999, the hearing officer ordered that the student be provided an independent neuropsychological evaluation at district expense. He denied the parent's request for a neurological evaluation because the student had been evaluated by an independent neurologist on April 6, 1999. However, he indicated the parties could pose questions to the neurologist for clarification of his findings. I note that there is no report from the neurologist in the record. The hearing officer also denied the parent's request for an occupational therapy evaluation and a CAPE, but indicated that the parties should alert the independent evaluator of their concerns in those areas. He identified a psychologist to conduct the neuropsychological evaluation and ordered that the parties provide the psychologist with appropriate data. He further ordered that the evaluation be completed within 60 days so that the CSE could reconvene to consider the findings prior to the start of the school year. On July 3, 1999 the hearing officer revised his order to more accurately reflect the statements he made at the June 11, 1999 hearing. He asked the parties to submit names of evaluators from which he would make a selection. After receiving suggestions from both parties, on July 19, 1999 the hearing officer revised his interim order of July 3 and named an independent psychologist to perform the neuropsychological evaluation. He ordered that the evaluation be completed within 45 days. In an interim order dated August 5, 1999, the hearing officer indicated that the parent's representative had raised some concerns regarding the independent evaluator's relationship with respondent. The hearing officer discussed the relationship with the evaluator and was satisfied the evaluator would be able to conduct an impartial examination of the student.

        The neuropsychological evaluation was conducted on various dates in August and September 1999 (Exhibits P-82 and P-85). The private psychologist assessed the student's motor integrative, sensory perceptual, speech/language, intellectual-conceptual, and contextual and noncontextual memory functioning, and noted that her scores represented an overall average range of neuropsychological functioning. However, he reported that the student had deficit areas in expressive speech. Her wealth of knowledge/word knowledge and verbal linguistic functioning were limited, and she scored in the low average range on tasks assessing her verbal analysis and reasoning. The student achieved a verbal IQ score of 80, a performance IQ score of 92, and a full scale IQ score of 84 on the Weschler Adult Intelligence Scale – Revised (WAIS-R), placing her in the low average range of intellectual functioning. However, her performance on a task designed to assess fluid intelligence was within the average range. The psychologist noted that the student scored in the impaired range on tasks assessing her contextual memory for verbally presented information, due in part to moderate attention and concentration difficulties. She demonstrated a particular weakness when asked to read then recall material. No impairments were detected in the student's noncontextual visual memory. However, the student became overwhelmed when auditory material was presented at a pace that challenged her ability to process accurately. The report does not include any recommendations concerning classification. The psychologist indicated that he was asked by respondent's assistant superintendent to focus on the student's strengths and weaknesses rather than specific academic recommendations.

        The CSE reconvened on October 12, 1999 (Exhibit P-81). The minutes from that meeting indicate that the CSE reviewed the independent neuropsychological evaluation and that both the CSE and the parent agreed that the evaluation was comprehensive. The CSE concluded that the student's psychological functioning was intact and within the average range. Accordingly, it found that she was not eligible for special education services.

        The hearing resumed on November 18, 1999 and continued on various days concluding on January 7, 2000. The hearing officer rendered his decision on March 16, 2000. He found that the overwhelming weight of the evidence did not support the parent's claim that her daughter should be classified as a child with a disability. He further found that the parent failed to demonstrate how any alleged procedural violations of the IDEA prevented her daughter from being provided a free appropriate public education. Having found that the program provided by the school district during the 1998-99 school year was appropriate, the hearing officer denied petitioner's request for compensatory education. The hearing officer also found that there was no evidence to substantiate petitioner's claim that she was being treated unfairly because of her association with a special education organization.

        Petitioner asks that I reverse the hearing officer's decision. She asserts that her daughter requires special education services and should be classified as a child with a disability. Additionally, she claims that respondent's CSE failed to comply with the requirements of the IDEA in evaluating and making recommendations for her daughter. Petitioner also claims that the hearing officer did not fully implement his interim order regarding the independent evaluation. She contends that the hearing officer failed to consider all of the evidence. Further, petitioner questions the hearing officer's impartiality and asks that I impose sanctions against him.

        Petitioner asserts that the hearing officer erred in upholding the CSE's determination that her daughter should not be classified as a child with a disability. A board of education bears the burden of establishing the appropriateness of a CSE's recommendation that a student not be classified as a child with a disability (Application of a Child Suspected of Having a Disability, Appeal No. 94-42; Application of a Child Suspected of Having a Disability, Appeal No. 94-41; Application of a Child Suspected of Having a Disability, Appeal No. 94-36; Application of a Child Suspected of Having a Disability, Appeal No. 94-18).

        When a student suspected of having a disability is referred to a CSE, it must ensure that an individual evaluation is performed. An individual evaluation must include an observation of the student in the student's current educational setting (8 NYCRR 200.4[b][4][viii]). The record shows that the student was referred to the CSE in January 1998 by her mother. After evaluating the student, the CSE convened on March 18, 1998 and concluded that the student was not eligible for special education services. The minutes from that meeting indicate that a classroom observation was conducted on February 25, 1998. However, there is no observation report in the record. Nor is there any testimony concerning the observation. The record further shows that in November 1998, when the student was in her first year of high school, petitioner requested that additional testing of her daughter be conducted. The CSE obtained parental consent to evaluate the student. The CSE met in December 1998, recommended that an occupational therapy evaluation be conducted and indicated that it would reconvene to review the results of the additional testing. The CSE met again on February 19, 1999 and determined that the student should not be classified as a child with a disability. The minutes from that meeting indicate that CSE reviewed the February 25, 1998 observation. Because the student was not classified as a child with a disability when she was referred in January 1998, the CSE was obligated to conduct an individual evaluation of the student when she was subsequently referred in November 1998. As noted above, an individual evaluation must include an observation of the student in her current educational setting. There is no indication in the record that an observation was conducted during the 1998-99 school year. Additionally, I note that federal regulation requires that when evaluating a child suspected of having a specific learning disability, as is the case here, at least one CSE member, other than the student's regular teacher, must observe the student's academic performance in the regular classroom setting (34 C.F.R. § 300.542).

        The failure to perform an adequate observation of a student suspected of having a disability may afford a basis for annulling a CSE's recommendation (Application of a Child Suspected of Having a Disability, Appeal No. 93-32; Application of a Child with a Handicapping Condition, Appeal No. 91-20). Based upon the information before me, I am unable to find that respondent met its burden of establishing the appropriateness of the CSE's recommendation that the student should not be classified as a child with a disability.

        Having found that the CSE failed to properly evaluate the student, it is not necessary that I address the other procedural violations of the IDEA alleged by petitioner, including respondent's actions with respect to petitioner's December 1998 due process request. Additionally, I need not reach the hearing officer's denial of petitioner's request for compensatory education because such request is premature. Compensatory education may be awarded when a student with a disability has been excluded from school, or denied appropriate services for an extended period of time (Burr v. Ambach, 863 F. 2d 1071 [2d Cir. 1988]; Mrs. C. v. Wheaton, 916 F. 2d 69 [2d Cir 1990]). As it has not been determined whether the student should be classified as a child with a disability, I find that there is no basis for such an award in this case at this time.

        Petitioner raises several concerns about the hearing officer's implementation of his interim order directing an independent evaluation. I find these challenges to be without merit. The transcript shows that the hearing officer treated each party equally and fairly. It further shows that he thoroughly considered specific concerns raised by petitioner in a memorandum dated November 13, 1999 (Transcript p. 647). I also find petitioner's assertion that the hearing officer failed to consider all of the evidence and the testimony of certain of her witnesses to be without merit. I have reviewed the entire record and find no basis to support this assertion.

        Petitioner contends that the hearing officer was biased against her in his treatment of her, her witnesses and representative, his evidentiary rulings, findings of fact, and conclusions of law. With respect to the hearing officer's treatment of petitioner, her witnesses and representative, I note that it is the hearing officer's responsibility to ensure that there is adequate information in the record to support a determination, which may include questioning the witnesses (Application of a Child with a Disability, Appeal No. 96-72). I have carefully reviewed the transcript and I find that there is no evidence of any actual bias against petitioner. I have also considered the hearing officer's evidentiary rulings about which petitioner complains. A hearing officer has the power and the duty to restrict the record to evidence which is relevant to the issues which must be decided, and may exclude irrelevant or unduly repetitious evidence and testimony (Application of a Child with a Disability, Appeal No. 96-51). I find that the hearing officer did not abuse his power, or evidence any bias against petitioner by his evidentiary rulings. The fact that the hearing officer did not always rule in favor of petitioner is not evidence of bias. Similarly, I find no evidence of actual bias in the hearing officer's findings of fact and conclusions of law. A hearing officer must avoid even the appearance of impropriety, and must render a decision which is based on the record (Application of a Child with a Disability, Appeal No. 94-32). I find that the hearing officer rendered a decision based on the record.

        The Board of Education cross-appeals from the hearing officer's interim order requiring it to pay for the neuropsychological evaluation of the student. It argues that the CSE had sufficient evaluative information upon which to make a determination. An impartial hearing officer may order that a student be evaluated at school district expense (8 NYCRR 200.5[c][6]). While that power is not unlimited, in this instance, I find that the evidence supports the hearing officer's decision. The hearing officer indicated that he ordered the neuropsychological evaluation because the discrepancies in the student's test scores raised additional questions (Transcript p. 618). He further indicated that the record wasn't entirely clear about the exact nature of the student's disability, if any. The hearing officer believed that the information obtained as a result of the evaluation would assist him in determining whether the student's program was appropriate to address her identified areas of weakness.

        I have reviewed petitioner's other claims which I find to be without merit.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

THE CROSS-APPEAL IS DISMISSED.

IT IS ORDERED that the hearing officer's decision is hereby annulled to the extent it upheld the CSE's recommendation not to classify the student as a child with a disability.

IT IS FURTHER ORDERED that within 30 days after the date of this decision respondent's CSE shall conduct observation of the student in her current educational setting, and shall make its recommendation regarding her appropriate classification, if any.